Justice Probe of CIA Torture Evidence: Another Whitewash?

Here's why the Justice Department's halt to a key part of its CIA torture investigation looks like another whitewash.

The DOJ compromised its probe from the beginning in 2008 by assigning it to Connecticut federal prosecutor John Durham, whom courts have twice implicated in suppressing evidence. In one of those cases, a federal judge attacked him also in 2003 for what she described as "severe misconduct" during cross-examination.

As background on this week's case, the DOJ announced Nov. 9 that it would not file obstruction of justice charges against CIA personnel for destroying 92 videotapes showing CIA interrogation of terrorism suspects in 2005 using waterboarding.

"This decision is stunning: There is ample evidence of a cover-up regarding the destruction of the tapes,'' commented ACLU Executive Director Anthony Romero. "The Bush administration was instructed by a court of law not to destroy evidence of torture, but that's exactly what it did.''

No one should be surprised.

In today's report, the Justice Integrity Project reveals that U.S. District Judge Janet Arterton in New Haven found Durham was part of a prosecution team that failed to turn over evidence to the defense in a gun possession case. Her 57-page ruling also said Durham then engaged in "severe misconduct" during an "incendiary cross-examination" of a key defense witness. As a result, the government dropped its charges against the defendant, Anthony Washington.

Another of Durham's controversial cases was the prosecution of Connecticut businessman Charles Spadoni on corruption charges. The case also compromises the credibility of Durham's Connecticut colleague Nora Dannehy, whom the DOJ entrusted to probe potential misconduct by her colleagues in orchestrating the DOJ's notorious political purges in 2006.

Let's recap revelations about these two prosecutors from our investigative report broken last July in Nieman Watchdog and reprinted promptly in the Huffington Post. Under Durham's overall supervision at their office, Dannehy was the lead prosecutor against the businessman Spadoni during his 2003 trial on campaign finance-related charges. In 2008, the U.S. Second Circuit Court of Appeals vacated the major convictions because prosecutors improperly suppressed evidence.

Shortly after the ruling, Bush Attorney Gen. Michael Mukasey, above left, named Dannehy as the special DOJ investigator into potential lawbreaking in DOJ' s unprecedented mid-term firing of U.S. attorneys in 2006 for political reasons.

She primarily focused on one firing, that of New Mexico U.S. attorney David Iglesias. She made no apparent effort during her two-year investigation to interview the victims around the country of politically motivated decision-making. In July, the DOJ under Mukasey's successor Eric Holder, above right, announced that her confidential report showed no basis for criminal charges against anyone.

The probes by Durham and Dannehy illustrate features that reappear in other major DOJ internal investigations of scandals. The probes are announced with fanfare and assigned to investigators with seemingly sterling credentials, but who may be compromised or otherwise incentivized in ways known only to insiders. The investigations are inherently secret, often with hidden groundrules that foreclose speaking to the best witnesses, and can stretch for years until public attention dwindles. Then they end with scant results.

Harper's contributor Scott Horton is among those who see this kind of pattern, as in his "Another DOJ Whitewash" column last summer about Dannehy and Durham. But even the best isolated commentaries are no substitute for daily reporting, which is all that most top officials and the public ever see.

And those assigned on a regular basis to law enforcement beats (as I was for five years at the Hartford Courant many years ago in Connecticut) have difficulty these days to go into much depth. In this instance, it would have required identifying, without any hint or encouragement from the DOJ itself, that the leaders of two major internal misconduct investigations might be productively researched via court decisions about their track records.

We've tried without success to obtain comment and any other additional perspective from Durham, Dannehy and DOJ's official spokespeople. They've kept mum.

So, the DOJ's total comment on this important probe apparently is its statement attributable to Public Affairs Director Matthew Miller:

In January 2008, Attorney General Michael Mukasey appointed Assistant United States Attorney John Durham to investigate the destruction by CIA personnel of videotapes of detainee interrogations. Since that time, a team of prosecutors and FBI agents led by Mr. Durham has conducted an exhaustive investigation into the matter. As a result of that investigation, Mr. Durham has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes.

First, the "harsh interrogations" involving waterboarding at issue are also suspected to be "torture" under longstanding international definitions. Historically, torture can be a war crime. The iconic Nuremberg War Crimes Commission may seem far away in time and space. But Chief U.S. Prosecutor Robert Jackson interrupted his Supreme Court duties for the task. As a plain-speaking and eloquent U.S. attorney general, he earlier provided inspirational guidance to the nation's prosecutors by urging an all-out commitment to fairness. So, it's a big deal on the world stage -- and in conflict with our highest traditions -- if authorities intentionally whitewash culpability in a torture probe.

Second, a government whose CIA agents apparently escape responsibility for destroying evidence remains shameless in throwing the book at private defendants. For example, the Connecticut U.S. attorney's office is still seeking to imprison Spadoni for deleting files from his office computer in 1999. That obstruction of justice count is the only one remaining from his decade-long ordeal after the appeals court vacated his substantive convictions.

Finally, the Justice Department's public relations techniques illustrate lack of accountability and transparency. This is a bipartisan problem. Mukasey, Holder and their staffs portray their internal investigations as tough, thorough, transparent and independent. The reality is the opposite.

These problems go far beyond the CIA videotape and political purge investigations. On Sept. 23, USA Today published an investigative series entitled, "Misconduct at the Justice Department." It documented 201 criminal cases since 1997 "in which judges determined that Justice Department prosecutors -- the nation's most elite and powerful law enforcement officials -- themselves violated laws or ethics rules."

One of those was the Durham case, U.S. v. Washington, where the trial judge found prosecutorial misconduct. USA Today's synopsis did not name Durham, but his role is specified in the judge's opinion and in a Connecticut Law Tribune report on June 23, 2003, entitled, "Attorney's Trial Tactics Impugned: Judge Tosses Conviction."

In fairness, let's note that many prosecutorial decisions are complex, with unpredictable results. Also, prosecutors, the FBI, CIA and other law-enforcers and security personnel protect the public against grave tangible threats, of course. Therefore, our system provides, appropriately enough, immunity from sanctions (and most of the time even embarassment) in all but the most extreme situations. And here any defendants would have undoubtedly mounted an aggressive defense. CIA clandestine officer Jose Rodriguez, who destroyed the tapes, "is truly an American hero," according to Robert Bennett, his powerhouse Washington attorney. Bennett told NPR Justice Department reporter Carrie Johnson, "He's a patriot and all he did was protect his people and his country."

That leads to another consideration. A court's finding of an error or lapse shouldn't unduly tarnish successes over an otherwise positive career.

Those who have worked with Durham and Dannehy, for example, can point to many examples of impressive work. As the top special prosecutor in a previous case examining a federal law enforcement scandal, Durham led the team that convicted John Connolly, a once-illustrious FBI agent. Massachusetts Chief U.S. District Judge Mark Wolf (for whom I was law clerk two decades ago) started the probe after he became suspicious of FBI and prosecutorial misconduct in a series of mob cases. The judge held in-depth hearings in the late 1990s. Durham then won racketeering and obstruction of justice convictions for Connolly, who last year was also sentenced for conspiracy to commit murder.

Wolf, a special assistant to Attorney General Edward Levy in the late 1970s who helped his boss create DOJ's Office of Professional Responsibility, is one of several chief federal judges who wrote Holder in 2009 urging him to be more active in ensuring that law enforcement personnel comply with the law.

Regrettably, these and many other reform efforts are disappointing in their results so far. But inaction can't be the alternative. Misconduct by authorities is a disaster for those whose freedom is at stake, and for those committed to a fair and credible justice system.